30 N.J.L. 29 | N.J. | 1862
By the compact between the states of New Jersey and New York, ratified by tire legislatures of the two states, and approved by congress, Nix. Dig. 822,
The indictment in the case before us charges that the defendants obstructed the free navigation of the river, by placing, sinking, and lodging in said river, and upon the
Had the special case explicitly stated that the obstructions placed on the shore, that is on the laud covered by the tide between the ordinary high and low water lines, were obstructions to the navigation of the river, and did it sufficiently appear that the two defendants had acted jointly in placing and keeping them there, I should he of opinion that judgment ought to be pronounced for the state. As the case appears, it will be the only safe course to send down the case for a new trial, that these two questions may be distinctly submitted to the jury.
It 1ms been earnestly insisted that the safety of property holders on the Jersey shore requires us to hold that obstructions in the river, outside of the low water line, if injurious to the navigation of vessels coining to that shore, are offences against onr laws and indictable in our courts. But apprehensions of this kind, which are probably altogether imaginary, will not justify os in departing from the plain meaning of the compact. Although, for some purposes, New Jersey is bounded by the middle of the Hudson river, and the state owns the land under the water to that extent, exclusive jurisdiction, not only over the water, hut over the land to the low water line on the Jersey shore, is in plain and unmistakable language, granted to, or rather acknowl
As persons not acquainted with the circumstances of the dispute between the states of New Jersey and New York, in regard to their respective rights in the river and bay separating them, have sometimes complained of the compact agreed upon in the year 1833, after a long and troublesome controversy, and after the failure of two previous attempts to terminate it by agreement, as having conceded too much, to New York, it may be proper to take this opportunity of explaining, the obvious motives which induced the commissioners and the legislature of this'state to'consent to the terms finally adopted.
The territories now forming the states of New York and New Jersey, including by name Hudson river, were granted originally by king Charles the second to his brother, the Duke of York; afterwards James the second. The duke granted to Lord Berkeley and Sir George Carteret the territory now the state of New Jersey, and described it as “ all that tract of laud adjacent to New England, and being to-the westward of Long Island and Manhattan Island, and bounded on the east part by the main sea and part by Hudson river, and hath upon the west Delaware bay or river.”' Between the date of this grant and the Revolution, the charters of New York city, and the proceedings of its authorities, showed that it had always been claimed that the whole
In the meantime, Judge Washington had decided that the grant to Hew Jersey limited its territory to the eastern shore of the Delaware river and bay, a decision acknowledged by this court to be correct. State v. Davis, 1 Dutcher 386. And, which was still more adverse to the claim of this state in reference to the waters of the Hudson, the Supreme Court of the United States laid down the doctrine, that “ when a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly created state ■extends to the river onlyand upon this principle they held that the Ohio river was exclusively within the territorial limits of Kentucky, and that Indiana had no jurisdiction •over or right to the river. Handley’s Lessee v. Anthony, 5 Wheat. 374.
When the commissioners of Hew Jersey and Hew York again met, in 1833, and it was found that those of the latter state appeared to be desirous of arranging the dispute upon fair and liberal terms, but deemed it indispensable that their great commercial emporium should have the exclusive control of the police on the surrounding waters, and full power to establish such quarantine regulations as should be found necessary, the commissioners of this state deemed it wise to .secure the exclusive property in the soil to the middle of the
In further elucidation of this subject, it is to be noticed* that the river Delaware was never within the jurisdiction-either of this state or Pennsylvania until, by the Revolution, the rights of the crown were extinguished, and each state them held to the middle. Under these circumstances, the agreement between the two states, adopted in 1783, Nix. Dig. 824,
A new trial ordered.
Rev., p. 1178.
Rev., p. 1181.
P. L., 1856, p. 242.